Suppa v. Landau , 390 N.Y.S.2d 154 ( 1976 )

In a proceeding pursuant to CPLR article 78, inter alia, to review a determination of the respondent superintendent of schools that petitioners had "engaged in a strike” by failing to participate in a "Night in School” activity, the petitioners appeal from an order and judgment (one paper) of the Supreme Court, Westchester County, dated July 17, 1976, which granted respondents’ motion for summary judgment and dismissed the petition. Order and judgment reversed, on the law, without costs or disbursements, and motion denied. Since the question of whether respondents’ determination was based upon substantial evidence was not raised in the petition, Special Term was correct in considering the proceeding on the merits and in not transferring it to this court for disposition (see CPLR 7804, subd [g]). However, it is our opinion that the record presents a question of fact as to whether the participation of secondary school teachers in the "Night in School” activity was mandatory or voluntary. The existence of that question of fact precludes the granting of summary judgment in favor of either party. Rabin, Acting P. J., Shapiro, Titone and Suozzi, JJ., concur.